1
Green Case Law in Austria Civil, criminal and
administrative environmental law provisions and
their relevance for Green NGOs

• Dr. Fritz Kroiss

2
Civil Law in Austria I

• Action for Injunction in the case of emissions
• Exception for plants with a permit.
• 364 and 364a ABGB (Austrian Civil law code)
• In the case of permitted plants only damage
  compensation.
• Very few cases
• Not used by NGOs because of court fees and cost
  risks

3
Mochovce Temelin Cases

• The Austrian Green Politician Eva Glawischnig
  filed an Action for Injunction against the
  operator of the Mochovce Nuclear Power Plant in
  Slovakia
• The Government of Upper Austria filed an Action
  for Injunction against the operator of the
  Temelin Nuclear Power Plant in Czech Republic
• These actions were not successful so far...

4
Civil Law in Austria II

• Environmenal Liability
• No comprehensive legislation in Austria so far.
  Drafts from the 1990s were not passed.
• New law under preparation to implement EU
  Environmental liability Directive.
• Sectoral provisions on Liability will remain in
  force.
• Not used by NGOs.

5
Cases Liability for contamination from (waste)
disposal

• Several cases deal with the question who should
  pay for the clean up
• Article 31 para 3 of the Austrian Water act
• Legal or illegal in the sense of environmental
  permitting is not relevant!
• What counts is the threat of the groundwater
• If the polluter cannot be identified the land
  owner has to pay the clean up costs!!!

6
Criminal law European Dimension I

• Commission Proposal for a Directive of the
  European Parliament and of the Council on the
  protection of the environment through criminal
  law COM (2001) 139, adopted by the Commission on
  13 March 2001.

7
Criminal law European Dimension II

• Council Framework Decision 2003/80/JHA of 27
  January 2003 on the protection of the environment
  through criminal law
• The European Commission decides to take action in
  the Court of Justice
• The Advocate General of the European Court of
  Justice delivered his conclusions on 26/05/2005

8
Criminal law European Dimension III

• The Advocate General recommends to declare the
  Council Decision as in breach of the EC treaty.
• Decision of the ECJ of 13.9.2005 (Rs C-176/03)
  declared Council Decision as null and void.
• Will the EC Commission go on with pushing through
  her proposal through the legislative procedures
  after the ECJ will have decided?

9
Austrian Dimension I

• Convention on the Protection of the Environment
  through Criminal Law
• (Strasbourg, 4.XI.1998).
• Convention requires three ratifications for its
  entry into force. Estonia is the only country
  which has ratified so far.
• Nevertheless Austria amended its criminal code to
  meet the requirements of the Convention

10
Austrian Dimension II

• Art. 180, Art. 181 to 181e, 182, Art. 183 to 183b
  of the Austrian Criminal Code
• Largely amended in 2006
• What constitutes an act of criminal offence?
  (both deliberate and negligent!)
• impairment of the environment (General),
• treatment and shipment of waste impairing the
  environment
• Operation of industrial plants impairing the
  environment
• etc.

11
Criminal law cases in Austria

• Number of complaints declined from 332 in 1994 to
  207 in 2002
• Number of sentenced persons is between 19 (1995)
  and 35 (1997)
• NGOs normally do not use criminal law as a tool
  in campaigning
• Administrative offence cases are much higher and
  much more relevant

12
Administrative Law in Austria I

• Law on Environmental Impact Assessment is the
  most prominent piece of Environmental law in
  Austria
• Since 2005 NGOs have legal standing in EIA
  procedures
• NGOs have to register at the Ministry for
  Environment if they want to participate in EIA
  procedures

13
Administrative Law in Austria II

• The Citizen Group (Bürgerinitiative) under
  Austrian EIA legislation
• Minimum 200 persons from respective Municipality
  or neighboring Municipality
• Signing one identical statement
• Takes part in the EIA procedure with legal
  standing
• Can file complaints even to the Administrative
  and the Constitution Court

14
Administrative Law in Austria III

• Since a few years Air Protection Legislation has
  high degree of Public Attention, as Austria is
  exceeding some air related environmental quality
  standards (imissions), e.g. dust (PM 10)
• Waste Legislation is not very present in the
  media, but a highly relevant for companies
  because of costs

15
Administrative Law in Austria III

• Nature Protection Legislation became an issue
  since Austrias EU Accession in 1995 The Natura
  2000 Protection System of the EU brought about
  major improvements in the field of Nature
  Conservation, which provoked opposition of land
  owners and farmers
• Several infringements procedures in front of the
  European Court of Justice, many of them brought
  to the Commission by NGOs.

16
Environmental Law Service of OKOBURO

• Most requests sent to OKOBURO concern EIAs for
  road projects
• OKOBURO receives financial support from the
  Austrian Ministry for Environment to maintain
  Environmental law service
• OKOBURO provides information texts on
  environmental legislation on its Webpage
• and answers individual requests

17
Natura 2000 case I

• Magna Real Estate (Mr. Frank Stronach) purchased
  land of 250 ha in the municipality
  of Ebreichsdorf in 1996 to develop the project of
  a so called thematic park. This leisure park
  should comprise a horse racetrack plus a 200 m
  high building on the shape of a globe.
• The site was in the process of designation as a
  Natura 2000 site.

18
Natura 2000 case II

• EC Commission was informed about the case by
  several NGOs and citizens groups.
• In November 2000 the Commission sent a formal
  letter of inquiry to the Austrian Government. In
  this letter the Commission stated that the
  definition of the boundaries of the respective
  Natura 2000 site had not been performed in
  accordance with scientific criteria.
• Parts of the land, which should have been added
  to the Natura 2000 zone, were excluded from it to
  allow the construction of the project possible.

19
Natura 2000 case III

• In 2001 necessary permits were issued, ignoring
  the ongoing investigations of the EU Commission
  on the case.
• An expert commission put together by the Austrian
  Government convinced the EU Commission to stop
  investigations and to close the case.
• The so called MAGNA RACIO horse race tracks
  opened on 4th September 2004.

20
EIA case I

• Spielberg Project Motor race track in Styria
• Group of investors want to extend and upgrade the
  race track
• Problematic for local population because of noise
• Positive EIA decision from 1st instance authority

21
EIA case II

• Neighbors bring in complaint against the
• 1st instance decision
• Appeal body (Umweltsenat) refuses EIA approval
• Government amends EIA act to push through the
  project
• Project modifications
• Preparations for new EIA ongoing

22
Conclusions

• EIA and environmental permitting most relevant
  for NGOs
• Legal standing for NGOs and Citizens groups
  (Bürgerinitiativen) in EIAs
• Political pressure often more effective then
  legal remedies
• Environmental Law Service of OKOBURO to support
  small NGOs very effektive

23
Contacts

• ÖKOBÜRO
• thomas.alge _at_oekobuero.at
• www.oekobuero.at
• www.justiceandenvironment.org
• Umweltbundesamt
• fritz.kroiss_at_umweltbundesamt.at
• www.umweltbundesamt.at